~ ~er:;:?h ~. l.i3 Wet~ S
Transcript of ~ ~er:;:?h ~. l.i3 Wet~ S
EPA ENFORCEMENT ACCOUNTS RECElY ABLE CONTROL NUMBER FORM FOR I
. ADMINISTRATIVE ACTIONS
This form was originated by Wanda L Santiago for Nmpe of Case Attorn
m the ORC (RAA) at 918-1113 Office & Mail Code Phone mn:nber
Case Docket Number ~A1\'...-f){' hP\L\.- 00~ Siterific Superfund (SF) Acct. Number
_V_ 11 This is an original debt This is ~ modification
Name and address of Person and/or Company/MunicipaliJ making the payment:
4?ukn ~ ~er:;:?h ~. l.i3 Wet~ S
Total Dollar Amount of Receivable$ i l± , I\$
No ( ' I Due Dare• ~fl)
Date Due ___ _ SEP due? Yes __ _
Installment Method (if applicable)
INSTALLMENTS OF:
200 $ ___________ on ___l
3ro$ ________ ~ __ on ___ l I
4th$ on ----------- ----1
5th $ on \ ----- --1 For RHC Tracking Purposes:
Copy of Check Received by RHC ____________ Notict Sent to Finance ________ _
TO BE FILLED OUT BY LOCAL FINANCIAL MANA!GEMENT ·oFFICE: I
IFMS Accounts Receivable Control Number---------:----------------------
If you have any questions call: in the Financial Management Office Phone Number
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 1
5 Post Office Square, Suite 100 BOSTON, MA 02109-3912
R~Ct!V£o Sfp 2 5 201~
O!tice ot R t~A ORe /J.Jj eg,onaJ Hearing Clerk
September 25, 2014
BY HAND
Wanda Santiago, Regional Hearing Clerk U.S. Environmental Protection Agency Region 1 (ORA 18-1) 5 Post Office Square, Suite 100 Boston, MA 021 09-3 912
Re: In re Borden & Remington Corp., Docket No. CAA-01-2014-0052
Dear Ms. Santiago:
Enclosed for fi ling are the following original documents, and one copy of each, relating to the above-referenced matter:
1. Consent Agreement and Final Order; and
2. Certificate of Service.
Kindly file the documents in the usual manner. Thanks very much for your help.
Very truly yours,
~If~ Laura J. Berry Enforcement Counsel
Enclosures
cc: Jonathon Pearlson, Esq. (Respondent's counsel) Leonard Wallace, OES, EPA Region 1
' .'
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION 1 RECEIVED
In the matter of
BORDEN & REMINGTON CORP.
63 Water Street Fall River, MA 02721
Respondent.
Proceeding under Section 113 of the Clean Air Act, 42 U.S.C. § 7413
) ) ) ) ) ) ) ) ) ) ) )
______________________________ )
SEP 2 5 2014 . EPAORC ~
Offtce of Regional Hearing Clerk
Docket No. CAA-01-2014-0052
CONSENT AGREEMENT AND FINAL ORDER
1. The United States Environmental Protection Agency Region 1 ("EPA" or
"Complainant") and Borden & Remington Corp. ("Borden Corp." or "Respondent") consent to
the entry of this Consent Agreement and Final Order ("CAFO") pursuant to 40 C.F.R. § 22.13(b)
ofthe Consolidated Rules of Practice Governing the Administrative Assessment of Civil
Penalties and the Revocation/Suspension of Permits, 40 C.F.R. Part 22 ("Consolidated Rules of
Practice"). This CAFO resolves Respondent's liability for alleged violations of the chemical
accident prevention provisions of Section 112(r)(7) of the Clean Air Act ("CAA" or the "Act"),
42 U.S.C. § 7412(r)(7), implementing federal regulations found at 40 C.F.R. Part 68, and Section
112(r)(1) of the Act, 42 U.S.C. § 7412(r)(1) (the "General Duty Clause").
2. EPA and Respondent hereby agree to settle this matter through this CAFO
without the filing of an administrative complaint, as authorized under 40 C.F.R. §§ 22.13(b) and
22.18(b).
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page I of38
3. EPA and Respondent agree that settlement of this matter is in the public interest,
and that entry of this CAPO without further litigation is the most appropriate means of resolving
this matter.
4. The facts and violations alleged herein were also alleged in a Notice of Violation
and Administrative Order issued to Respondent on March 28, 2014 (the "NOV/AO").
Respondent was cooperative in responding to the NOV/AO and addressing the issues cited
therein. Respondent developed a Work Plan and Schedule to correct the violations cited in the
NOV/AO and submitted to EPA a certification that the Work Plan has been fully implemented
and that Respondent has corrected all ofthe violations cited in the NOV/AO.
5. Therefore, before taking any testimony, upon the pleadings, without adjudication
or admission of any issue of fact or law, it is hereby ordered as follows:
I. PRELIMINARY STATEMENT
6. This CAPO both initiates and resolves an administrative action for the assessment
of monetary penalties, pursuant to Section 113(d) of the CAA, 42 U.S.C. § 7413(d). As more
thoroughly discussed in Sections III and IV below, the CAPO resolves the following CAA
violations that Complainant alleges occurred in conjunction with Respondent's storage and
handling of hazardous substances at its Fall River, Massachusetts facility:
a. Failure to prepare and submit a Risk Management Plan that includes all
covered processes, in violation of Section 112(r) ofthe CAA, 42 U.S.C. § 7412(r), and 40 C.P.R.
§§ 68.12(a) and 68.150(a);
b. Failure to comply with process safety information requirements, including
documentation of compliance with recognized and generally accepted good engineering
practices, in violation of Section 112(r) of the CAA, 42 U.S.C. § 7412(r), and 40 C.P.R.§§ 68.65
and/or 68.48;
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 2 of38
c. Failure to comply with operating procedures requirements, in violation of
Section 112(r) ofthe CAA, 42 U.S.C. § 7412(r), and 40 C.F.R. § 68.69; and
d. Failure to design and maintain a safe facility , in violation of the General
Duty Clause, Section 112(r)(l) ofthe CAA, 42 U.S.C. § 7412(r)(l).
II. STATUTORY AND REGULATORY AUTHORITY
7. Pursuant to Section 112(r)(l) of the CAA, 42 U.S.C. § 7412(r)(l), owners and
operators of stationary sources producing, processing, handling, or storing substances listed
pursuant to Section 112(r)(3) of the CAA, 42 U.S.C. § 7412(r)(3), or any other extremely
hazardous substance, have a general duty to (a) identify hazards which may result from
accidental releases of such substances using appropriate hazard assessment techniques;
(b) design and maintain a safe facility taking such steps as are necessary to prevent releases; and
(c) minimize the consequences of accidental releases that do occur. This section of the CAA is
referred to as the "General Duty Clause."
8. Section 112(r) ofthe CAA, 42 U.S.C. § 7412(r), authorizes EPA to promulgate
regulations and programs to prevent, and minimize the consequences of, the accidental release of
certain regulated substances. In particular, Section 112(r)(3), 42 U.S.C. § 7412(r)(3), requires
EPA to promulgate a list of substances that are known to cause or may reasonably be anticipated
to cause death, injury, or serious adverse effects to human health or the environment if
accidentally released, and Section 112(r)(5), 42 U.S.C § 7412(r)(5), requires EPA to establish for
each regulated substance a threshold quantity over which an accidental release is known to cause
or may reasonably be anticipated to cause death, injury, or serious adverse effects to human
health. Section 112(r)(7) ofthe CAA, 42 U.S.C. § 7412(r)(7), requires EPA to promulgate
requirements for the prevention, detection, and correction of accidental releases of regulated
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 3 of38
substances, including a requirement that owners or operators of certain stationary sources
prepare and implement a Risk Management Plan ("RMP").
9. Pursuant to Section 112(r)(7) ofthe CAA, 42 U.S.C. § 7412(r)(7), EPA
promulgated RMP regulations, found at 40 C.F.R. §§ 68.1-68.220 ("Part 68").
10. Under Section 112(r)(7)(e) of the CAA, 42 U.S.C. § 7412(r)(7)(e), it is unlawful
for any person to operate any stationary source subject to the regulations promulgated pursuant
to Section 112(r) ofthe CAA, 42 U.S.C. § 7412(r), in violation of such regulations.
11. Section 68.130 of 40 C.F .R. lists the substances regulated under Part 68 ("RMP
chemicals" or "regulated substances") and their associated threshold quantities, in accordance
with the requirements of Section 112(r)(3) of the CAA, 42 U.S.C. § 7412(r)(3).
12. Under 40 C.F.R. § 68.1 0, an owner or operator of a stationary source that has
more than a threshold quantity of a regulated substance in a process must comply with the
requirements of Part 68 by no later than the latest of the following dates: (a) June 21 , 1999;
(b) three years after the date on which a regulated substance is first listed under 40 C.F.R.
§ 68.130; or (c) the date on which a regulated substance is first present above a threshold
quantity in a process.
13. A "process" is defined by 40 C.F.R. § 68.3 as 'any activity involving a regulated
substance, including any use, storage, manufacturing, handling, or on-site movement of such
substances, or combination of these activities.
·14. Each process in which a regulated substance is present in more than a threshold
quantity (a "covered process") is subject to one of three risk management programs, whose
eligibility requirements are set forth in 40 C.F .R. § 68.1 0. Program 1 is the least comprehensive,
and Program 3 is the most comprehensive. Under 40 C.F.R. § 68.10(b), a covered process is
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 4 of38
subject to Program 1 if, among other things, the distance to a toxic or flammable endpoint for a
worst-case release assessment is less than the distance to any public receptor. Under 40 C.F.R.
§ 68.1 0( d), a covered process is subject to Program 3 if the process does not meet the eligibility
requirements for Program 1 and is either in certain specified NAICS codes or subject to the
Occupational Safety and Health Administration ("OSHA") process safety management ("PSM")
standard set forth at 29 C.F.R. § 1910.119. Under 40 C.F.R. § 68.10(c), a covered process
meeting neither Program 1 nor Program 3 eligibility requirements is subject to Program 2.
15. Forty C.F.R. § 68.12 mandates that the owner or operator of a stationary source
implement the chemical accident prevention provisions of Part 68 to which it is subject and
submit an RMP, including a registration that reflects all covered processes. The RMP documents
compliance with Part 68. For example, the RMP for a Program 3 process documents compliance
with the elements of a Program 3 Risk Management Program, including 40 C.F .R. § 68.12
(General Requirements); 40 C.F.R. § 68.15 (Management System to Oversee Implementation of
RMP); 40 C.F.R. Part 68, Subpart B (Hazard Assessment to Determine Off-Site Consequences
of a Release); 40 C.F.R Part 68, Subpart D (Program 3 Prevention Program); and 40 C.F.R. Part
68, Subpart E (Emergency Response Program).
16. Additionally, 40 C.F .R. § 68.190(b) dictates that the owner or operator of a
stationary source must revise and update the RMP submitted to EPA at least once every five
years from the date of its initial submission or most recent update.
17. Pursuant to 40 C.F.R.§ 68.65, the owner or operator of a Program 3 process is
required to, among other things, compile written process safety information, document
information pertaining to the hazards of the regulated substances, technology, and equipment in
the process, document that the equipment complies with recognized and generally accepted good
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 5 of38
engineering practices, and, for equipment that was designed according to outdated standards,
document that the equipment is designed, maintained, inspected, tested, and operated in a safe
manner.
18. Pursuant to 40 CFR § 68.48, the owner or operator of a Program 2 process is
required to, among other things, ensure that the process is designed in compliance with
recognized and generally accepted good engineering practices.
19. Pursuant to 40 C.F.R. § 68.69, the owner or operator of a s~ationary source with
processes subject to RMP Program 3 requirements must develop and implement written.
operating procedures that provide clear instructions for safely conducting activities involved in
each covered process at a facility, including steps for each operating phase (including initial
startup, normal operations, temporary operations, emergency shutdown, emergency operations,
normal shutdown, and startup following a turnaround or after an emergency shutdown),
operating limits (including consequences of deviation and steps required to correct or avoid
deviation), safety and health considerations (including properties and hazards of the chemicals
used in each process, precautions necessary to prevent exposure, control measures to be taken if
exposure occurs, quality control for raw materials and control of hazardous chemical inventory
levels, and any special or unique hazards), and safety systems and their functions.
20. Pursuant to 40 C.F.R. § 68.52, the owner or operator of a stationary source with
processes subject to RMP Program 2 requirements must develop and implement written
operating procedures that provide clear instructions or steps for safely conducting activities
associated with each covered process at a facility, including initial startup, normal operations,
temporary operations, emergency shutdown and operations, normal shutdown, startup following
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 6 of38
a normal or emergency shutdown or a major change that requires a hazard review, consequences
of deviation and steps required to correct or avoid deviation, and equipment inspections.
21. Section 112(r)(7)(E) makes it unlawful for any person to operate any stationary
source subject to Section 112(r) of the CAA, 42 U.S.C. § 7412(r), in violation of the regulations
promulgated thereunder. See 42 U.S.C. § 7412(r)(7)(E); see also 40 C.F.R. Part 68.
22. Sections 113(a) and (d) ofthe CAA, 42 U.S.C. § 7413(a) and (d), as amended by
EPA' s 2008 Civil Monetary Penalty Inflation Adjustment Rule, 40 C.F.R. Part 19, promulgated
in accordance with the Debt Collection Improvement Act of 1996 ("DCIA"), 31 U.S.C. § 3701 ,
provide for the assessment of civil penalties for violations of Section 112(r) of the CAA, 42
U.S.C. § 7412(r), in amounts up to $37,500 per day for violations occurring after January 12,
2009.
23. EPA and the U.S. Department of Justice have jointly determined that this action is
an appropriate administrative penalty action under Section 113(d)(1) ofthe Act, 42 U.S.C.
§ 7413(d)(l).
III. GENERAL ALLEGATIONS
24. Borden Corp. is the operator of a chemical manufacturing, warehouse, and
distribution facility located at 63 Water Street in Fall River, Massachusetts (the "Facility").
25. Borden Corp. manufactures ammonium hydroxide and sodium hypochlorite at the
Facility for distribution. Borden stores and uses chlorine and anhydrous ammonia, among other
chemicals, in the preparation of its finished products.
26. Borden Corp. also stores, distributes, or otherwise uses hydrochloric acid, nitric
acid, sulfuric acid, acetic acid, phosphoric acid, potassium hydroxide, sodium hydroxide,
hydrogen peroxide, potassium permanganate, ferric chloride, sodium bisulfite, sodium persulfate,
sodium silicate, potassium fluoride, and copper sulfate.
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 7 of38
27. The Facility abuts Mount Hope Bay, a tidal estuary located near the mouth of the
Taunton River. The Facility is located less than 0.1 miles from a bridge that carries Interstate
195 over the Taunton River, less than 0.2 miles from a state park, several museums, a war
memorial, a performing arts center, and an elementary school, and less than 0.3 miles from a
marina and several residential houses.
28. Borden Corp. is a corporation organized under the laws of the Commonwealth of
Massachusetts with its principal office located in Fall River, Massachusetts.
29. Borden Corp. is a "person" within the meaning of Section 302( e) of the CAA, 42
U.S.C. § 7602(e), against whom an administrative order assessing a civil penalty may be issued
under Section 113(d)(l) ofthe CAA, 42 U.S.C. § 7413(d)(1).
30. The Facility is a "stationary source" as that term is defined at Section 112(r)(2)(C)
ofthe CAA, 42 U.S.C. § 7412(r)(2)(C), and 40 C.F.R. § 68.3.
31. Borden Corp. is the "operator," as that term is defined at Section 112(a)(9) of the
CAA, 42 U.S.C. § 7412(a)(9), of a stationary source.
32. The use, storage, manufacturing, handling or on-site movement of a regulated
substance at the Facility (in any vessel, group of interconnected vessels, or separate vessels that
are located such that a regulated substance could be involved in a potential release) is a
"process," as defined by 40 C.F.R. § 68.3.
33. Respondent uses and/or stores anhydrous ammonia, ammonia (20 percent or
greater), and chlorine, each an RMP Chemical, at the Facility.
34. Other chemicals found at the Facility, such as hydrochloric acid, nitric acid,
sulfuric acid, acetic acid, phosphoric acid, polyphosphoric acid, potassium hydroxide, sodium
hydroxide, sodium hypochlorite, hydrogen peroxide, potassium permanganate, ferric chloride,
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 8 of38
sodium bisulfite, sodium persulfate, sodium silicate, potassium fluoride, and copper sulfate,
either alone or improperly co-located with at least one of the other chemicals listed in this
paragraph, are chemicals that may, as a result of short-term exposures associated with releases to
the air, cause death, injury, or property damage due to their toxicity, reactivity, flammability,
volatility, or corrosivity. Accordingly, they are "extremely hazardous substances" subject to the
General Duty Clause of the CAA. Additionally, chlorine, ammonia, nitric acid, and sulfuric acid
are "extremely hazardous substances" by virtue oftheir inclusion on the list of extremely
hazardous substances published under Section 112(r)(3) of the CAA, 42 U.S.C. § 7412(r)(3), 40
C.P.R. § 68.130, and/or the Emergency Planning and Community Right-to-Know Act of 1986
("EPCRA"), 40 C.P.R. Part 355, Appendix A.
35. On May 1 and 2, 2012, EPA conducted an inspection at the Facility to determine
its compliance with Section 112(r) ofthe CAA, 42 U.S.C. § 7412(r), and EPCRA (the
"Inspection").
Applicability of RMP requirements to the sodium hypochlorite production process
36. At the time ofthe Inspection, the Facility housed approximately 160,000 pounds
.of chlorine in a railcar which was connected with other containers and mixing vessels that also
contained chlorine in a bleach production process in and around what Respondent refers to as
Room A in Building 17 at the Facility ("sodium hypochlorite production process"). One of the
vessels attached to this process was a tank labeled only with the notation "P 765," which was
later identified as containing sodium hypochlorite.
37. Chlorine is an RMP Chemical listed at 40 C.P.R.§ 68.130, having a threshold
quantity of 2,500 pounds.
38. The use of chlorine in an interconnected system is a "covered process" as that
term is defined in 40 C.P.R. § 68.3.
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 9 of38
39. In 2008, Borden Corp. filed a Program 3 RMP in which it reported that it used
720,000 pounds of chlorine in the sodium hypochlorite production process.
40. In 2013, Borden Corp. filed a Program 3 RMP in which it reported that it used
800,000 pounds of chlorine in the sodium hypochlorite production process.
41. Chemical inventory reports submitted by Borden Corp. pursuant to EPCRA
indicate that it used chlorine in amounts over the threshold quantity in the sodium hypochlorite
production process in 2009, 2010, 2011 , and 2012.
42. Currently, Respondent uses more than the threshold quantity of chlorine in the
sodium hypochlorite production p~ocess.
43. Accordingly, from at least 2008 through the present, chlorine is or has been
"used," "stored," and "handled" in a covered process at the Facility in amounts greater than the
threshold amount under 40 C.P.R.§ 68.130.
44. The distance to a toxic or flammable endpoint for a worst-case release assessment
of chlorine from the sodium hypochlorite production process at the Facility is greater than the
distance to a public receptor.
45. Chlorine in an amount over the threshold quantity of 1,500 pounds is subject to
OSHA' s PSM requirements at 29 C.P.R.§ 1910.119.
46. As the operator of a stationary source that has more than the threshold amount of
a regulated substance in a covered process, Respondent was, at all times relevant to the
allegations herein, subject to the RMP requirements of Part 68. In accordance with 40 C.P.R.
§ 68.1 0( a)-( d), Respondent's storage, use, and processing of chlorine in the sodium hypochlorite
production process is subject to Program 3 because (1) the distance to a toxic or flammable
endpoint for a worst-case release of chlorine is greater than the distance to a public receptor,
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 10 of38
making the process ineligible for Program 1; and (2) the process is subject to OSHA's PSM
regulations.
Applicability of RMP requirements to the ammonium hydroxide production process
4 7. At the time of the Inspection, the Facility housed approximately 160,000 pounds
of anhydrous ammonia in a railcar which was connected with other containers and mixing
vessels that contained ammonia in an ammonium hydroxide production process located in the
southwest comer of the Facility outdoors near several piers along Mount Hope Bay ("ammonium
hydroxide production process").
48. Anhydrous ammonia is an RMP Chemical listed at 40 C.F.R. § 68.130, having a
threshold quantity of 10,000 pounds.
49. Ammonia (20% or greater) is an RMP Chemical listed at 40 C.F.R. § 68.130,
having a threshold quantity of 20,000 pounds.
50. The ammonium hydroxide production process also includes the manufacture,
handling, and storage of ammonia (20% or greater) in interconnected containers and tanks in an
amount greater than the threshold quantity.
51. The use, storage, manufacture, and/or handling of anhydrous ammonia and
ammonia (20% or greater) in the ammonium hydroxide production process is a "covered
process" as that term is defined in 40 C.F.R. § 68.3.
52. In 2008, Borden Corp. filed a Program 3 RMP in which it reported that it used
720,000 pounds of anhydrous ammonia and 500,000 pounds of ammonia (20% or greater) in the
ammonium hydroxide production process.
53. In 2013, Borden Corp. filed a Program 3 RMP in which it reported that it used
720,000 pounds of anhydrous ammonia and 681,000 pounds of ammonia (20% or greater) in the
ammonium hydroxide production process.
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 11 of38
54. Chemical inventory reports submitted by Borden Corp. pursuant to EPCRA
indicate that it used and stored anhydrous ammonia in amounts over the threshold quantity in the
ammonium hydroxide production process in 2009, 2010, 2011 , and 2012.
55. Chemical inventory reports submitted by Borden Corp. pursuant to EPCRA
further indicate that it used and stored ammonia (20% or greater) in amounts over the threshold
quantity in the ammonium hydroxide production process in 2009, 2010, 2011 , and 2012.
56. Currently, Respondent uses more than the threshold quantity of anhydrous
ammonia and ammonia (20% or greater) in the ammonium hydroxide production process.
57. Accordingly, from at least 2008 through the present, anhydrous ammonia and
ammonia (20% or greater) are or have been "used," "stored," and "handled" in a covered process
at the Facility in amounts greater than the threshold amounts under 40 C.F .R. § 68.130.
58. The distance to a toxic or flammable endpoint for a worst-case release assessment
of anhydrous ammonia from the ammonium hydroxide production process at the Facility is
greater than the distance to a public receptor.
59. Anhydrous ammonia in an amount over the threshold quantity of 10,000 pounds
is subject to OSHA' s PSM requirements at 29 C.F.R. § 1910.119.
60. As the operator of a stationary source that has more than the threshold amount of
a regulated substance in a covered process, Respondent was, at all times relevant to the
allegations herein, subject to the RMP requirements of Part 68. In accordance with 40 C.F.R.
§ 68.1 O(a)-( d), Respondent's storage and processing of anhydrous ammonia and ammonia (20
percent or greater) is subject to Program 3 because (1) the distance to a toxic or flammable
endpoint for a worst-case release of anhydrous ammonia is greater than the distance to a public
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 12 of38
receptor, making the process ineligible for Program 1; and (2) the process is subject to OSHA's
PSM regulations.
Applicability of RMP requirements to the Railcar Receiving, Storage, and Handling process
61. Borden Corp. also regularly receives, stores, and handles more than the respective
threshold quantities of chlorine and anhydrous ammonia in railcars for a period of time before
conriecting the railcars to the sodium hypochlorite production process or the ammonium
hydroxide production process. Borden Corp. regularly receives notification that railcars of
chlorine and/or anhydrous ammonia it ordered have been delivered to a fenced rail yard located
approximately 0.15 miles from the sodium hypochlorite production process and 0.25 miles from
the ammonium hydroxide production process (the "Fenced Rail Yard"). Once these railcars are
delivered to the Fenced Rail Yard, the railcars are disconnected from an engine and left in the
Fenced Rail Yard for Borden Corp. to pick up. Borden Corp. employees use an onsite Track
Mobile to move the railcars from the Fenced Rail Yard to the process areas or to other areas of
the Facility for temporary storage before being hooked up to the sodium hypochlorite and
ammonium hydroxide production processes.
62. The storage and handling of chlorine and anhydrous ammonia prior to connection
to the sodium hypochlorite or ammonium hydroxide production process (the "railcar receiving,
storage, and handling process") is a "covered process" as that term is defined in 40 C.F.R.
§ 68.3.
63. Chemical inventory reports submitted by Borden Corp. pursuant to EPCRA
indicate that it used, stored, and handled chlorine in amounts over the threshold quantity in the
railcar receiving, storage, and handling process in 2009, 2010, 2011, and 2012.
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 13 of38
64. Chemical inventory reports submitted by Borden Corp. pursuant to EPCRA
indicate that it also used, stored, and handled anhydrous ammonia in amounts over the threshold
quantity in the railcar receiving, storage, and handling process in 2009, 2010, 2011 , and 2012.
65. Currently, Respondent uses more than the threshold quantity of anhydrous
ammonia and chlorine in the railcar receiving, storage, and handling process.
66. Accordingly, from at least 2008 through the present, anhydrous ammonia and
chlorine are or have been "stored" and "handled" in a covered process at the Facility in amounts
greater than the threshold amounts under 40 C.F.R. § 68.130.
67. The distance to a toxic or flammable endpoint for a worst-case release assessment
of chlorine or anhydrous ammonia from the railcar receiving, storage, and handling process at
the Facility is greater than the distance to a public receptor.
68. Chlorine in an amount over the threshold quantity of 1,500 pounds and anhydrous
ammonia in an amount over the threshold quantity of 10,000 pounds are subject to OSHA' s PSM
requirements at 29 C.F.R. § 1910.119.
69. As the operator of a stationary source that has more than the threshold amount of
a regulated substance in a covered process, Respondent was, at all times relevant to the
allegations herein, subject to the RMP requirements of Part 68. In accordance with 40 C.F.R.
§ 68.1 O(a)-( d), Respondent' s storage and handling of chlorine and anhydrous ammonia in the
railcar receiving, storage, and handling process is subject to Program 3 because (1) the distance
to a toxic or flammable endpoint for a worst-case release of chlorine or anhydrous ammonia is
greater than the distance to a public receptor, making the process ineligible for Program 1; and
(2) the process is subject to OSHA' s PSM regulations.
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 14 of38
Applicability of RMP requirements to the ammonium hydroxide repackaging process
70. Borden Corp. also regularly handles and stores more than the threshold quantity
of ammonia (20 percent or greater) in a series of interconnected and/or separate vessels located
such that it could be involved in a potential release, inside and immediately outside Building 17,
where Borden Corp. repackages ammonium hydroxide from tanker trucks into drums, totes, and
other containers and stores them prior to distribution (the "repackaging process").
71. The on-site movement, handling, and storage of ammonia (20 percent or greater)
in the repackaging process is a "covered process" as that term is defined in 40 C.F.R. § 68.3.
72. In 2008, Borden Corp. filed a Program 3 RMP in which it reported that it used
50,000 pounds of ammonia (20% or greater) and 50,000 pounds offormaldehyde in the
repackaging process.
73. In 2013, Borden Corp. filed a Program 3 RMP in which it reported that it used
120,000 pounds of ammonia (20% or greater) in the repackaging process.
74. Chemical inventory reports submitted by Borden Corp. pursuant to EPCRA also
indicate that it handled and stored ammonia (20 percent or greater) in amounts over the threshold
quantity in the repackaging process in 2011 and 2012.
75. Currently, Respondent uses more than the threshold quantity of ammonia (20% or
. greater) in the repackaging process.
76. Accordingly, from at least 2008 through the present, ammonia (20 percent or
greater) is or has been "stored" and "handled" in the repackaging process at the Facility in
amounts greater than the threshold amount under 40 C.F.R. § 68.130. Also, in 2008,
formaldehyde was "stored" and "handled" in the repackaging process at the Facility in amounts
greater than the threshold amount under 40 C.F.R. § 68.130.
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 15 of38
77. The distance to a toxic or flammable endpoint for a worst-case release assessment
of ammonia (20% or greater) from the repackaging process at the Facility is greater than the
distance to a public receptor. Likewise, the distance to a toxic or flammable endpoint for a
worst-case release assessment of formaldehyde from the repackaging process at the Facility was
greater than the distance to a public receptor.
78. As the operator of a stationary source that has more than the threshold amount of
a regulated substance in a covered process, Respondent was, at all times relevant to the
allegations herein, subject to the RMP requirements of Part 68. The Facility' s storage and
repackaging of ammonia (20% or greater) and formaldehyde was subject to the requirements of
Program 3, in accordance with the requirements of 40 C.F.R. § 68.10(a) through (d), because
(1) the distance to a toxic or flammable endpoint for a worst-case release of ammonia (20% or
greater) or formaldehyde is or was greater than the distance to a public receptor, making the
process ineligible for Program 1; and (2) the process was subject to OSHA' s PSM regulations.
Now that formaldehyde is no longer used. in this process 1, it could be re-categorized as subject to
the requirements of Program 2 instead. Respondent may also choose to continue to categorize
the repackaging process as Program 3, for ease of administration.
Applicability of General Duty Clause to Facility
79. As the operator of a stationary source that processes, handles or stores extremely
hazardous substances, Respondent is and has been, at all times relevant to the allegations herein,
subject to the General Duty Clause found in Section 112(r)(1) ofthe CAA, 42 U.S.C.
§ 7412(r)(l).
1 Information submitted by Borden Corp. in response to EPA's Request for Information pursuant to Section 114 of the Clean Air Act indicates that formaldehyde is no longer used or stored at the Facility or in this process.
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 16 of38
RMP Update History
80. In June 1999, Borden Corp. submitted a Program 3 RMP, which it updated in
January 2002, July 2003, December 2008, and December 2013.
81 . The RMP updates filed by Borden Corp. in 2008 and 2013 did not include or
address the railcar receiving, storage, and handling process.
Potentially Dangerous Conditions Observed
82. During the Inspection, EPA inspectors observed some potentially dangerous
conditions at the Facility1 including but not limited to:
a. Potentially dangerous conditions in the storage and handling of
chlorine and anhydrous ammonia in the railcar receiving, storage, and handling process.
The following potentially dangerous conditions were observed during the Inspection:
1. Unprotected chlorine railcar on siding: A railcar containing
chlorine that was not protected by concrete barriers, a sea wall, or any other form of protection,
was observed sitting unattended on rail siding in an area where trucks and other vehicles
regularly parked and drove over the rail siding to access other areas of the Facility and the
waterfront docks. This was a high traffic area that was regularly accessed by employees,
contractors, and guests of Respondent and other tenants, including fishing and tugboat
companies who require access to the docks. Two trucks were observed parked approximately
twenty feet from the unattended railcar on the day of the Inspection. The lack of adequate
protection or isolation of the railcars from vehicular traffic created a significant risk of a collision
that could result in an accidental release of chlorine.
n. Unprotected anhydrous ammonia railcar on siding: A railcar
containing anhydrous ammonia that was not protected by concrete barriers, a sea wall, a derailer,
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 17 of38
chocks, or any other form of protection, was observed sitting unattended on rail siding in an area
where trucks and other vehicles regularly parked and drove over the rail siding to access other
areas of the Facility and the waterfront docks. This was a high traffic area that was regularly
accessed by employees, contractors, and guests of Respondent and other tenants, including
fishing and tugboat companies who require access to the docks. Two cars were observed parked
less than fifteen feet from the unattended railcar on the day of the Inspection, and tanker trucks
were observed nearby. The lack of adequate protection or isolation of the railcars from vehicular
traffic created a significant risk of a collision that could result in an accidental release of
anhydrous ammonia.
b. Potentially dangerous conditions in the storage and processing of
chlorine and other hazardous substances in the sodium hypochlorite production process.
The sodium hypochlorite process, which is located inside and immediately outside Room A in
Building 17, is where chlorine and sodium hydroxide are used to manufacture sodium
hypochlorite. The following potentially dangerous conditions relating to the sodium
hypochlorite production process were observed during the Inspection:
1. Tank not properly labeled: A large tank labeled "P 765" was not
labeled with its contents or associated hazards. According to a Facility representative, the tank
contained sodium hypochlorite. Adjacent tanks were labeled with the words "sodium
hypochlorite," but they were not labeled with a placard warning of the hazards of the contents.
In the event of an accidental release, emergency responders might not know what was in tank "P
765" or the associated hazards and how that would determine the proper response. Tank "P 765"
was interconnected with the chlorine reactor vessels such that a failure to label it might
complicate an emergency response to a chlorine release. Quick identification of the contents of
in re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 18 of38
tank "P 765" would also be important in the event of an accidental release from that tank since
formaldehyde, which is incompatible with sodium hypochlorite, was also stored in the same
room.
11. Piping not properly labeled: Most of the piping used in the
sodium hypochlorite production process was not labeled with the contents or direction of flow of
the materials contained therein. In order to understand the hazards resulting from and minimize
the likelihood of an accidental release, piping that contains hazardous materials should have been
labeled with at minimum the identity ofthe contents and the direction of flow.
111. Deficient secondary containment/spill protection: The sodium
hypochlorite production process includes a number of large tanks, reactors, and other vessels that
contain hazardous and potentially reactive materials, including, among other things, chlorine,
sodium hydroxide, and sodium hypochlorite. A small berm was placed around the entire
process, but it was ineffective because it would not segregate accidental releases of incompatible
chemicals in the process (such as sodium hypochlorite or chlorine and sodium hydroxide), large
cracks in the flooring ran underneath the berm in several places, and it was only a few inches
high and thus would not be able to contain the full volume of the large process vessels were they
to rupture or otherwise release their contents. Proper berming was particularly important given
that containers of formaldehyde, which is incompatible with sodium hypochlorite, were located
in the same room.
1v. Corroded electrical equipment and piping supports: Piping that
carried chlorine from a railcar to the reactors was being supported by a severely corroded piping
support system. An electrical pump and several support brackets for piping used in the process
were also severely corroded, creating a heightened risk of a chlorine release.
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 19 of38
v. Unprotected piping: PVC piping located near the ground that
carried materials between tanks/reactors in the process had no physical protection, such as a
metal covering, to prevent from breaking in the event that it was stepped on or something was
dropped on it. Such protection would have minimized the chance of an accidental release.
c. Potentially dangerous conditions in the storage and processing of
anhydrous ammonia and ammonium hydroxide in the ammonium hydroxide production
unit.
1. Corroded tanks and tank supports: Tanks and/or reactor vessels
containing anhydrous ammonia and/or ammonium hydroxide and support systems for those
vessels showed signs of corrosion, further increasing the likelihood of an ammonia release. For
instance, EPA observed depressions on the back end of the anhydrous ammonia tank that
suggested the tank had been hit by a vehicle or other object, and some portions of the tank
surface showed signs of rusting and corrosion. In addition, the ammonium hydroxide tanks, the
supports for those tanks, and associated piping showed signs of corrosion.
11. Piping not properly labeled: Most of the piping used in the
ammonium hydroxide production process was not labeled with the contents or direction of flow
of the materials contained therein. On the second day of the Inspection, EPA inspectors
observed that some of the piping was labeled with arrows indicating the direction of flow, but
not the contents of the piping. When asked when those labels were installed, a Facility
representative stated that they were added the night before and earlier that morning, before EPA
inspectors arrived for Day 2 of the Inspection. In order to understand the hazards resulting from
and minimize the likelihood of an accidental release, piping that contains hazardous materials
should have been labeled with at minimum the identity of the contents and the direction of flow.
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 20 of38
d. Potentially dangerous conditions in the storage and handling of
ammonia (20% or greater) and other hazardous substances in the repackaging process.
1. Corroded electrical equipment: The electrical panels that supplied
electricity to the process were heavily corroded. In the event of a fire , the ammonium hydroxide
drums and other containers in the area could have released toxic ammonia vapors to the
environment.
u. Piping not properly labeled: Most of the piping used in the
repackaging process was not labeled with the contents or direction of flow of the materials
contained therein. In order to understand the hazards resulting from and minimize the likelihood
of an accidental release, piping that contains hazardous materials should have been labeled with
at minimum the direction of flow.
e. Potentially dangerous conditions arising from deficient chemical
management practices in various areas throughout the Facility. During the Inspection, EPA
inspectors observed the following examples of incompatible chemicals stored sufficiently close
together such that a spill or release of one chemical could have resulted in a chemical reaction
with other chemicals, creating toxic gases and/or causing a fire or explosion2:
1. In Building 17, Room C, ammonium hydroxide was stored
adjacent to sodium hydroxide and ferric chloride. The interaction of these substances could have
caused an exothermic reaction liberating toxic gases, and the reaction products may be
flammable and corrosive.
2 The reactivity of chemicals at the facility was predicted through the use of CAMEO Chemicals, an on-line tool designed for people who are involved in hazardous material incident response and planning, developed by the National Oceanic and Atmospheric Administration ' s Office of Response and Restoration in partnership with the Environmental Protection Agency' s Office of Emergency Management and the U.S. Coast Guard' s Research and Development Center.
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 21 of38
n. In Building 17, Room C, nitric acid was stored adjacent to
hydrochloric acid and potassium hydroxide. The interaction of these substances could have
caused an exothermic, violent reaction liberating toxic, flammable, and/or explosive byproducts.
Borden Corp.'s material safety data sheet ("MSDS") for hydrochloric acid indicates that it is
highly reactive with hydroxides.
111. In Building 17, Room C, hydrochloric acid was stored adjacent to
ammonium hydroxide. The interaction of these substances could have caused an exothermic,
violent reaction liberating corrosive gases and may cause pressurization. Borden Corp.'s MSDS
for ammonium hydroxide indicates that co-location with acids should be avoided due to their
reactivity with this chemical.
IV. In Building 17, Room B, acetic acid was stored adjacent to
potassium hydroxide. The interaction of these substances could have caused an exothermic,
violent reaction liberating corrosive, toxic, and/or flammable gases. Borden Corp. ' s MSDS for
potassium hydroxide indicates that co-location with strong acids should be avoided due to their
reactivity with this chemical.
v. In Building 17, Room B, sulfuric acid was stored adjacent to
sodium hypochlorite and acetic acid. The interaction of these substances could have caused an
exothermic, violent reaction liberating corrosive, toxic, explosive, and/or flammable gases.
Borden Corp. ' s MSDS for sodium hypochlorite indicates that acids should be avoided due to
their reactivity with this chemical.
vt. In Building 17, Room B, copper sulfate was stored adjacent to
sodium persulfate. The interaction of these substances could have caused a violent reaction
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 22 of38
liberating gases that may cause pressurization and/or products that may be explosive or sensitive
to shock or friction.
vu. In Building 17, Room B, potassium permanganate was stored
adjacent to hydrogen peroxide. The interaction of these substances could have caused an
exothermic, violent reaction liberating corrosive, explosive, flammable, and/or toxic byproducts.
Borden Corp. ' s MSDS for potassium permanganate indicates that it should be segregated from
peroxides due to their reactivity with this chemical.
vm. In Building 17, Room A, potassium fluoride was stored adjacent to
calcium oxide and transformer fluid. The interaction of potassium fluoride and calcium oxide
could have caused an exothermic, violent reaction liberating toxic gases. The interaction of
potassium fluoride and transformer fluid could have caused an exothermic, violent reaction
liberating corrosive, toxic, and/or flammable gases.
IX. In Building 17, Room A, phosphoric acid was stored adjacent to
sodium bisulfite. The interaction of these substances could have caused an exothermic reaction
liberating corrosive and toxic gases.
x. In Building 17, Room A, sodium bisulfite was stored adjacent to
sodium hydroxide. The interaction of these substapces could have caused an exothermic reaction
liberating corrosive and toxic gases.
XL In Building 17, Room A, polyphosphoric acid, glacial acetic acid,
sodium silicate star/clear, and sodium bisulfite stored adjacent to each other. The interaction of
these substances could have caused an exothermic, violent reaction liberating corrosive,
flammable, and/or toxic gases. Borden Corp. ' s MSDS for sodium silicate indicates that co-
location with acids should be avoided due to their reactivity with this chemical.
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 23 of38
xn. In Building 17, Room A, lime and glacial acetic acid were stored
in large tanks with a capacity of approximately 6,000 gallons each, neither of which had any
form of secondary containment, and which were located less than thirty feet apart. The
interaction of these substances could have caused a violent reaction liberating corrosive,
flammable, and toxic gases. Borden Corp. ' s MSDS for hydrated lime indicates that it reacts
violently with strong acids.
83. As described in paragraph 4, Respondent has asserted that it has corrected the
dangerous conditions identified in paragraph 82 and has submitted documentation to EPA in
support of this assertion.
IV. VIOLATIONS
COUNT I- FAILURE TO PREPARE AND SUBMIT RMP THAT INCLUDES ALL COVERED PROCESSES
84. The allegations in paragraphs 1 through 83 are hereby realleged and incorporated
herein by reference.
85. As described in paragraph 15 above, pursuant to 40 C.P.R.§§ 68.12(a) and
68.150(a), the owner or operator of a Program 3 process is required to prepare and submit an
RMP that reflects all covered processes.
86. As described in paragraph 81 above, the RMP updates filed by Borden Corp. in
2008 and 2013 did not include or address the railcar receiving, storage, and handling process.
87. Accordingly, Respondent violated the requirement to prepare an RMP and submit
an RMP registration that includes all covered processes in 40 C.P.R. §§ 68.12(a) and 68.150(a).
COUNT II- FAILURE TO COMPLY WITH PROCESS SAFETY INFORMATION REQUIREMENTS
88. The allegations in paragraphs 1 through 87 are hereby realleged and incorporated
herein by reference.
in re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 24 of38
89. As described in paragraphs 17 and 18 above, an owner or operator of a Program 2
or Program 3 covered process must compile process safety information for RMP chemicals,
including but not limited to demonstrating that each covered process complies with recognized
and general accepted good engineering practices. See 40 C.F.R. §§ 68.48, 68.65.
90. As described in paragraphs 82.a.i- 82.a.ii, 82.b.i- 82.b.v, 82.c.i- 82.c.ii, and
82.d.i - 82.d.ii above, Respondent failed to document that equipment used in the railcar
receiving, storage, and handling process, the sodium hypochlorite production process, the
ammonium hydroxide production process, and the repackaging process complies with
recognized and generally accepted good engineering practices.
91. As described in paragraph 82.a.i above, Respondent was not adequately
protecting railcars containing chlorine from vehicles and other on-site traffic. The recommended
industry practice and standard of care is to place bulk containers of chlorine behind barriers or
other protection and to ensure those containers are located in a position where that the possibility
of damage by vehicles will be minimized. See, e.g. , The Chlorine Institute's Pamphlet 6: Bulk
Storage of Liquid Chlorine (June 2011) § 3.1.
92. As described in paragraph 82.a.ii above, Respondent was not adequately
protecting railcars containing anhydrous ammonia from vehicles and other on-site traffic. The
recommended industry practice and standard of care is to place containers of anhydrous
ammonia behind barriers or other protection and to ensure those containers are located in a
position where that the possibility of damage by vehicles will be minimized. See, e.g. , American
National Standards Institute ("ANSI") K61.1: Safety Requirements for the Storage and
Handling of Anhydrous Ammonia (1999) §§ 5.3.1 (location for anhydrous ammonia storage
should be selected considering the surroundings of the proposed site), 6. 7.1 (containers and
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 25 of38
appurtenances shall be located or protected by suitable barriers so as to avoid damage by trucks
of other vehicles )3.
93. As described in paragraph 82.b.i above, Respondent was not adequately labeling
all tanks containing hazardous materials used in the RMP processes. Due to its high reactivity
and in order to avoid accidental mixing, the recommended industry practice and standard of care
is to place signs that identify the contents as "sodium hypochlorite" on all vessels that contain it.
See, e.g., The Chlorine Institute's Pamphlet 96: Sodium Hypochlorite Manual (October 2011)
§ 5.1; the Center for Chemical Process Safety of the American Institute of Chemical Engineers'
("CCPS") Guidelines for Safe Warehousing of Chemicals § 2.2 ("containerized and packaged
chemicals should be readily identifiable through the container' labels, shipping papers, or material
safety data sheets"). Moreover, the recommended industry practice and standard of care is to
place a visible hazard identification signs as specified in the National Fire Prevention
Association's ("NFP A") Standard 704 on all stationary containers and aboveground tanks
containing hazardous materials. See, e.g. , NFPA 704: Standard System for the Identification of
the Hazards of Materials for Emergency Response (20 12); the International Fire Code (2009)
("IFC")4 § 2703.5 (requiring visible hazard identification signs as specified in NFP A 704 on
stationary containers and aboveground tanks and at entrances to locations where hazardous
materials are stored); NFPA 1: Fire Code (2012) § 60.5.1.8.2.1 (same). Failure to do so was
particularly hazardous in an environment like this one where there were incompatible chemicals
3 ANSI K6l.l is incorporated into the Massachusetts Board of Fire Prevention Regulations. See 527 CMR 14.03(12)(c). 4 The Massachusetts Board of Building Regulations and Standards ("BBRS") adopted the International Building Code (2009) ("IBC") and incorporated it by reference into the Massachusetts State Building Code. 780 CMR 101.1. Massachusetts also adopts the IFC where it is referenced by the IBC and not otherwise addressed by the Board of Fire Prevention Regulations (527 CMR). 780 CMR 101.4.5.
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 26 of38
in close proximity and the tank is part of a covered process involving chlorine, an RMP
chemical.
94. As described in paragraphs 82.b.ii, 82.c.ii, and 82.d.ii above, Respondent was not
adequately labeling all piping containing hazardous materials used in the RMP processes. The
recommended industry practice and standard of care is to label all piping containing hazardous
materials to indicate the contents, direction of flow, and any additional details necessary to
identify hazards. See, e.g. , the American Society ofMechanical Engineers ("ASME") A13.1-
2007: Scheme for the Identification of Piping Systems; NFP A 400: Hazardous Materials Code
(2010) § 6.1.6.2(2) (referencing ASME A13.1).
95. As described in paragraph 82.b.iii above, Respondent failed to provide adequate
secondary containment for the tanks, reactors, and other vessels that make up the sodium
hypochlorite production process. Given the hazardous nature of chlorine and other materials
used in the production of sodium hypochlorite, the recommended industry practice and standard
of care is to use secondary containment to mitigate the potential consequences of a release. See,
e.g., The Chlorine Institute' s Pamphlet 96: Sodium Hypochlorite Manual (October 2011)
§§ 6.1.3 (storage locations should be selected "to allow containment in the event of accidental
spillage"), 7 .12.4 (recommending precautionary use of containment structures for bulk or drum
sodium hypochlorite storage); IFC § 2704.2.2 (requiring secondary containment for vessels of
corrosive liquids with an individual capacity over 55 gallons, or multiple vessels with a total
capacity greater than 1,000 gallons); NFPA 400 (2013) §§ 6.2.1.9.3.1(1), 6.3.2.2.4.2, 6.3.2.3.3.2
(same).
96. Respondent was aware of the need for secondary containment for vessels in the
sodium hypochlorite process. A process hazard analysis ("PHA") for the sodium hypochlorite
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 27 of38
reactor dated January 2011 considered the consequences of a catastrophic rupture of the reactor,
and resulted in the recommendation of installing a berm around the process area. Other portions
of the PHA, considering potential hazards at different stages of the sodium hypochlorite process,
resulted in twelve additional instances in which it was recommended that a berm should be
installed around the process in order to contain potential releases.
97. As described in paragraphs 82.b.iv and 82.d.i above, electrical equipment in the
sodium hypochlorite production process and the repackaging process was heavily corroded. The
recommended industry practice and standard of care is to use electrical equipment identified for
use in this type of damp environment with regular exposure to corrosive fumes, and to maintain
electrical equipment in good condition, free from corrosive residues or other contaminants that
might adversely affect the safe operation or mechanical strength ofthe equipment. See, e.g.,
NFPA 70: National Electrical Code (2011)5 §§ 110.11 (unless identified for use in that
environment, no equipment shall be located "in damp or wet locations [or] where exposed to
gases, fumes, liquids, or other agents that have a deteriorating effect on the condw;:tors or
equipment"), 110.12 (electrical equipment should be installed in a "neat and workmanlike
manner" and should not be damaged or contaminated by foreign materials such as corrosive
residues), and 300.6 (boxes, cabinets, and support hardware shall be of materials suitable for the
environment in which they are installed).
98. As described in paragraph 82.b.iv above, the piping support systems in the
sodium hypochlorite production process were severely corroded. The recommended industry
practice and standard of care is to maintain piping support systems in good condition, free from
metal wear or corrosion. See, e.g., The Chlorine Institute ' s Pamphlet 6: Piping Systems for Dry
5 NFPA 70 was adopted and incorporated by reference into the Massachusetts Electrical Code. 527 CMR 12.00.
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 28 of38
Chlorine (May 2005) §§ 10.2 (chlorine piping should not be hung from other piping and should
be adequately supported by a system that does not allow metal to metal ~ear or corrosion), 10.9
(recommending painting or use of other protective coatings to limit corrosion), 12.2
(recommending periodic checks of paint condition and condition of piping supports to maximize
pipe life and minimize leaks due to corrosion); The Chlorine Institute's Pamphlet 96: Sodium
Hypochlorite Manual (April 2006) § 6.3.2 (factors to consider when selecting piping materials
include structural strength and chemical resistance, noting that virtually all common metals will
corrode rapidly on contact with sodium hypochlorite solutions).
99. As described in paragraph 82.b.v above, PVC piping used in the sodium
hypochlorite production process was not adequately protected from impact from foot or other
traffic. The recommended industry practice and standard of care is to provide protection and/or
support systems for PVC piping used in chlorine and sodium hypochlorite service. See, e.g., The
Chlorine Institute' s Pamphlet 96: Sodium Hypochlorite Manual (October 2011) § 6.3.2
(recommending support systems for PVC piping systems ifthere is any risk of impact, including
"foot/vehicle traffic" or "maintenance or operations activities"); The Chlorine Institute's
Pamphlet 6: Piping Systems for Dry Chlorine (May 2005) § 9 (recommends protection ofPVC
piping from impact).
100. As described in paragraph 82.c.i above, tanks and other vessels used in the
ammonium hydroxide production process and support systems for those vessels were heavily
corroded. The recommended industry practice and standard of care is to maintain tanks that
contain ammonia in good condition, free from corrosion, to minimize the risk of an accidental
release. See, e.g., ANSI K61.1: Safety Requirements for the Storage and Handling of
Anhydrous Ammonia (1999) §§ 5.12 (containers should have a reflective surface maintained in
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 29 of38
good condition), 6.4.2 (recommending a means for preventing corrosion on the portion of the
container in contact with supports).
101. Accordingly, Respondent failed to ensure that its processes complied with
recognized and generally accepted good engineering practices, and thereby violated the process
safety information requirements of 40 C.P.R.§§ 68.65 and/or 68.48.
COUNT III- F AlLURE TO COMPLY WITH OPERATING PROCEDURES REQUIREMENTS
102. The allegations in paragraphs 1 through 101 are hereby realleged and
incorporated herein by reference.
103. As described in paragraphs 19 and 20 above, an owner or operator of a Program 2
or Program 3 covered process must develop and implement written operating procedures that
include certain specified elements, including but not limited to information regarding the
consequences of deviation, steps required to correct or avoid deviation, emergency operations,
and emergency shutdown. See 40 C.P.R. §§ 68.52, 68.69.
104. Standard operating procedures ("SOPs") for the ammonium hydroxide production
process and for the hypochlorite production process that were submitted to EPA following the
Inspection did not contain all of the elements required by 40 C.P.R.§ 68.69.
105. For instance, the SOPs for unloading anhydrous ammonia and bulk loading of
anhydrous ammonia did not include adequate information regardi~g operating limits (including
consequences of deviation and steps required to correct or avoid deviation), nor did they include
information regarding emergency operations or emergency shutdown (or an internal cross
reference to any other SOP that addressed emergency operations or emergency shutdown).
106. Further, the SOP for the bleach plant start-up and shutdown did not include
adequate information regarding operating limits (including consequences of deviation and steps
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 30 of38
required to correct or avoid deviation), nor did it reference the SOP for emergency shutdown
procedures for chlorine. In addition, the SOP for emergency shutdown procedures for chlorine
did not include the consequences of deviation or steps required to avoid deviation.
107. Accordingly, Respondent did not have adequate operating procedures and thereby
violated the operating procedures requirements of 40 C.P.R. § 68.51 and/or 68.69.
COUNT IV -FAILURE TO DESIGN AND MAINTAIN A SAFE FACILITY
108. The allegations in paragraphs 1 through 107 are hereby realleged and
incorporated herein by reference.
1 09. As described in paragraph 7 c;t.bove, pursuant to the General Duty Clause, Section
112(r)(1) ofthe CAA, owners and operators of stationary sources producing, processing,
handling, or storing extremely hazardous substances have a general duty to identify hazards
which may result from accidental releases of such substances and to design and maintain a safe
facility, taking the appropriate steps to prevent accidental releases and minimize the
consequences of releases that do occur.
110. The term "extremely hazardous substance" means an extremely hazardous
substance within the meaning of Section 112(r)(l) ofthe Clean Air Act. Such substances include
any chemical which may, as a result of short-term exposures associated with releases to the air,
cause death, injury, or property damage due to its toxicity, reactivity, flammability, or
corrosivity.6 The term includes but is not limited to regulated substances listed in Section
112(r)(3), 42 U.S.C. § 7412(r)(3), and 40 C.P.R.§ 68.130. Also, the release of any substance
that causes death or serious injury because of its acute toxic effect or as a result of an explosion
6 S. Rep. No. 101-228 (1989), as reprinted in 1990 U.S.C.C.A.N. 3385, 3596.
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 31 of38
or fire or that causes substantial property damage by blast, fire, corrosion, or other reaction
would create a presumption that such substance is extremely hazardous. 7
111. As described in paragraph 82.e above, EPA's inspector observed deficient storage
practice associated with numerous chemicals that, alone or improperly co-located with at least
one of the other chemicals listed in that paragraph, are "extremely hazardous substances" subject
to the requirements of the General Duty Clause.
112. The storage of these incompatible chemicals in close proximity to one another, as
alleged in paragraph 82.e, created risk of explosion, liberation of toxic, corrosive, and flammable
gases, and other violent reactions.
113. The recommended industry practice and standard of care is to segregate and
separate incompatible chemicals by a distance of not less than 20 feet. See, e.g. , NFP A 400
(2013) § 6.1.12; NFPA 1 (2012) § 60.5.1.12; IFC § 2703.9.8; CCPS' s Guidelines for Safe
Warehousing of Chemicals§ 2.6; see also Borden Corp. ' s MSDSs, available at
http:/ /boremco.com/msds-20 1 O.html.
114. The deficient storage practices alleged in paragraph 82.e constituted a failure to
design and maintain a safe facility, and take such steps as are necessary to prevent accidental
releases.
115. Accordingly, Respondent violated the requirement to design and maintain a safe
facility, as required under the General Duty Clause, Section 112(r)(1) of the CAA, 42 U.S.C.
§ 7412(r)(1).
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 32 of38
V. TERMS OF SETTLEMENT
116. The provisions ofthis CAFO shall apply to and be binding on EPA and on
Respondent, its officers and directors in their capacity as officers and directors of Respondent,
and its successors and assigns.
117. Respondent stipulates that EPA has jurisdiction over the subject matter alleged in
this CAFO and that this CAFO states a claim upon which relief may be granted against
Respondent. Respondent hereby waives any defenses it might have as to jurisdiction and venue
relating to the violations alleged in this CAFO.
118. Respondent neither admits nor denies the specific factual allegations contained in
Section III of this CAFO or the violations alleged in Section IV of this CAFO. Respondent
consents to the assessment of the penalty stated herein.
119. Respondent hereby waives its right to a judicial or administrative hearing on any
issue of law or fact set forth in this CAFO and waives its right to appeal the Final Order.
120. Respondent certifies, to the best of its knowledge and after thoroughly reviewing
and responding to the NOV/AO issued by EPA in March 2014 citing the same violations alleged
in Section IV of this CAFO, that it is currently operating the Facility in compliance with Sections
112(r)(1) and (7) ofthe CAA, 42 U.S.C. §§ 7412(r)(1) and (7), and 40 C.F.R. Part 68.
121. Pursuant to Section 113(e) ofthe CAA, 42 U.S.C. § 7413(e), and taking into
account the relevant statutory penalty criteria, the facts alleged in this CAFO, and such other
circumstances as justice may require, EPA has determined that it is fair and proper to assess a
civil penalty of one hundred fourteen thousand, one hundred eighteen dollars ($114, 118) for the
violations alleged in this matter.
122. Respondent consents to the issuance of this CAFO and to the payment ofthe civil
penalty cited in paragraph 121 .
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 33 of38
123. Within thirty (30) days of the effective date ofthis CAPO, Respondent shall
submit a company, bank, cashier' s, or certified check in the amount of$114,1'18 payable to the
order of the "Treasurer, United States of America." The check should be sent to:
U.S. EPA Fines and Penalties Cincinnati Finance Center P.O. Box 979077 St. Louis, MP 63197-9000
Or, Respondent may make payment by electronic funds transfer via:
Federal Reserve Bank ofNew York ABA = 021030004 Account = 68010727 SWIFT Address= FRNYUS33 33 Liberty Street New York, NY 10045 Field Tag 4200 of the Fedwire message should read:
"D 68010727 Environmental Protection Agency"
Respondent shall include the case name and docket number ("In re Borden & Remington Corp.,
Docket No. CAA-01-2014-0052") on the face of the check or wire transfer confirmation. In
addition, at the time of payment, Respondent shall simultaneously send notice ofthe payment
and a copy of the check or electronic wire transfer confirmation to:
Wanda I. Santiago Regional Hearing Clerk (Mail Code ORA 18-1) U.S. Environmental Protection Agency, Region 1 5 Post Office Square, Suite 1 00 Mail Code ORA18-1 Boston, MA 02109-3912
and
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 34 of38
Laura J. Berry Enforcement Counsel (Mail Code OES 04-2) U.S. Environmental Protection Agency, Region 1 5 Post Office Square, Suite 100 Mail Code OES 04-2 Boston, MA 021 09-3 912
124. In the event that any portion of the civil penalty amount described in paragraph
123 is not paid when due without demand, pursuant to Section 113(d)(5) of the CAA, 42 U.S.C.
§ 7413(d)(5), Respondent will be subject to an action to compel payment, plus interest,
enforcement expenses, and a nonpayment penalty. Interest will be assessed on the civil penalty
if it is not paid when due. In that event, interest will accrue from the effective date ofthis CAPO
at the "underpayment rate" established pursuant to 26 U.S.C. § 6621(a)(2). In the event that the
penalty is not paid when due, an additional charge will be assessed to cover the United States'
enforcement expenses, including attorneys' fees and collection costs. Moreover, a quarterly
nonpayment penalty will be assessed for each quarter during which the failure to pay the penalty
persists. Such nonpayment penalty shall be 10 percent ofthe aggregate amount ofRespondent's
outstanding civil penalties and nonpayment penalties hereunder accrued as of the beginning of
such quarter.
125. The civil penalty under this CAFO and any interest, nonpayment penalties, and
other charges described herein shall represent penalties assessed by EPA, and shall not be
deductible for purposes of federal taxes. Accordingly, Respondent agrees to treat all payments
made pursuant to this CAPO as penalties within the meaning of Section 1.62-21 ofthe Internal
Revenue Code, 26 U.S.C. § 162-21 , and further agrees not to use these payments in any way as,
or in furtherance of, a tax deduction under federal , state, or local law.
126. This CAFO shall not relieve Respondent of its obligations to comply with all
applicable provisions of federal , state, or local law.
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 35 of38
127. This CAPO constitutes a settlement and release by EPA of all claims for civil
penalties against Respondent pursuant to Sections 113(a) and (d) of the CAA for the specific
violations alleged in this CAPO. Compliance with this CAPO shall not be a defense to any other
actions subsequently commenced pursuant to federal laws and regulations administered by EPA,
and it is the responsibility of Respondent to comply with said laws and regulations.
128. Nothing in this CAPO shall be construed as prohibiting, altering, or in any way
limiting the ability of EPA to seek any other remedies or sanctions available by virtue of
Respondent's violation of this CAPO or of the statutes and regulations upon which this CAFO is
based, or for Respondent ' s violation of any applicable provisions of law.
129. Nothing in this CAPO is intended to resolve any criminal liability of Respondent,
and EPA reserves all its other criminal and civil enforcement authorities, including the authority
to seek injunctive relief and the authority to address imminent hazards.
130. Each party shall bear its own costs and fees in this proceeding, including
attorneys' fees, and specifically waives any right to recover such costs from the other party
pursuant to the Equal Access to Justice Act, 5 U.S.C. § 504, or other applicable laws.
131. The terms, conditions, and requirements of this CAFO may not be modified
without the written agreement of both parties and approval of the Regional Judicial Officer.
132. In accordance with 40 C.F .R. § 22.31 (b), the effective date of this CAPO is the
date on which it is filed with the Regional Hearing Clerk.
133. Each undersigned representative of the parties certifies that he is fully authorized
by the party responsible to enter into the terms and conditions of this CAPO and to execute and
legally bind that party to it.
in re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 36 of38
FOR U.S. ENVIRONMENTAL PROTECTION AGENCY:
Susan Studlien, Director Office of Environmental Stewardship U.S. Environmental Protection Agency, Region 1
& REMINGTON CORP.:
Date: 1j'lfcldlf
In re Borden & Remington Corp. Consent Agreement and Final Order EPA Docket No. CAA-01-2014-0052 Page 37 of38
FINAL ORDER
The foregoing Consent Agreement is hereby approved and incorporated by reference into
this Final Order. The Respondent is hereby ordered to comply with the terms of the above
Consent Agreement, which will be effective on the date is filed with the Regional Hearing Clerk.
In re Borden & Remington Corp. EPA Docket No. CAA-01-2014-0052
Consent Agreement and Final Order Page 38 of38
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 1
IN THE MATTER OF
BORDEN & REMINGTON CORP.
63 Water Street Fall River, MA 02721
Respondent
) ) ) ) ) ) ) ) ) )
Docket No. CAA-01-2014-0052
RtCEIVEo SEP 2 5 2Gt~
·~:p, Office ot Re . ~ 'ORC j.j.S
gtonat Hearing Clerk
________________________________ )
CERTIFICATE OF SERVICE
I hereby certify that the foregoing Consent Agreement and Final Order has been sent to the following persons on the date noted below:
Original and one copy, hand-delivered:
Copy, by Certified Mail, Return Receipt Requested:
Ms. Wanda Rivera Regional Hearing Clerk U.S. EPA, Region I (ORA18-1) 5 Post Office Square, Suite 100 Boston, MA 021 09-3 912
Jonathon Pearlson, Esq. Goulston & Storrs 400 Atlantic A venue Boston, MA 02110-3333 (Counsel for Respondent)
Dated: -~1/_z S--L./ -----'1 '-!:.____ Laura~IJ~ Enforcement Counsel U.S. Environmental Protection Agency, Region 1 5 Post Office Square, Suite 100 (OES 04-2) Boston, MA 02109-3912 Tcl(617)918-1148 Fax (617) 918-0148